- (1.) THIS is a civil first appeal by the defendant Mohanlal from the judgement and decree of the court of the Civil Judge, Udaipur dated the 4th of October 1954, by which the suit of the plaintiffs was decreed against Mohanlal appellant for a sum of Rs. 7,183/8/- which costs and with interest at the rate of 12 per cent per annum from the date of the institution of the suit till the date of the decree with future interest at the rate of 6 percent per annum from the date of the decree till realisation.
(2.) CHIMANLAL and Roshanlal through his next friend CHIMANLAL instituted a suit against Mohanlal and his son Bal Mukand on the 6th of July 1953 for sum of Rs. 7,183/8/-in the court of the Civil Judge, Udaipur with the allegation that CHIMANLAL and Devilal, father of the other plaintiff Roshanlal carried on a partnership business of running motor services, working forest contracts, etc. in the partnership of defendant Mohanlal under the firm name M. G. Company, which was dissolved on the 10th of January, 1951 and in consideration of the monies invested by CHIMANLAL and his son Devilal in the partnership business, Mohanlal executed a contract in favour of both CHIMANLAL and Devilal on the 10th of January, 1951, by which he undertook to pay an amount of Rs. 22,531/- by instalments or Rs. 1,000/- up to the time of setting in of rains and then of Rs. 2,000/-per month after rains as per terms contained in the agreement. The plaintiff claimed the following sums on account of the arrears of instalments on the basis of the contract of the 10th of January, 1951 : (1) Rs. 4,000/-on account of the arrears of the two instalments of Rs. 2,000/-each for the months of November and December, 1952; (2) Rs. 2,000/- on account of the arrears of the instalment of January, 1953; and (3) A sum of Rs. 531/- on account of the arrears of the instalment for the month of February, 1953; making a total of Rs. 6,531/ -. A sum of Rs. 652/8/- was added to the aforesaid sum of Rs. 6,531/-on account of interest on the arrears of instalments that had fallen due from the 7th of September, 1952 upto the 7th of July, 1953 at the rate of 12 per cent per annum. The defendant Mohanlal contested the suit and Bal Mukand did not put in his appearance. Proceedings were taken ex parte against him. The suit resulted in a decree against Mohanlal only and it was dismissed against Bal Mukand. Mohanlal has come to this court and the learned counsel of the appellant has placed the following points for consideration in this appeal: - (1) Chimanlal cannot represent the estate of Devilal, as both Chimanlal and Devilal were not members of a joint Hindu family and Chimanlal could not inherit Devilal by survivorship; ' (2) Chimanlal could not act as the next friend of the minor Roshanlal when the mother of Roshanlal was his natural guardian; (3) The suit of the plaintiffs was not maintainable on account of the provision of sec. 69 of the Indian Partnership Act inasmuch as the suit is for monies invested by Chimanlal and Devilal in the partnership business, which was not registered. It may be noted that the son of Devilal, namely Roshanlal, minor is also one of the plaintiffs and it is not disputed that he represents the estate of Devilal. Both Chimanlal and Roshanlal, the son of Devilal, can jointly give a discharge of the debt in respect of the agreement executed by Mohanlal in favour of Chimanlal and Devilal and the question of Chimanlal succeeding by survivorship to the estate of Devilal is not relevant for purposes of this case. No decision need be given inter alia, say between Chimanlal and Roshanlal, the son of Devilal in the present suit. It is enough to say that both of them together have a right to sue on the basis of agreement executed by Mohanlal in favour of Chimanlal and Devilal. There is no information on the record as to whether the mother of Roshanlal is living and as such there is no basis for the learned counsel to advance an argument for making the mother of Roshanlal his next friend. However, Chimanlal has filed the suit on behalf of the minor Roshanlal also as his next friend. Chimanlal is the grand father of of Roshanlal and the minor son Roshanlal is living with him as stated by Chimanlal. The interest of the minor appears to be properly safeguarded by Chimanlal, whose interest under the circumstances cannot be regarded as adverse to that of the minor. The only point that deserves consideration relates to the application of sec. 69 of the Indian Partnership Act to the suit of the plaintiffs. Sec. 69 (1) lays down that: - "no suit to enforce a right arising from a contractor conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. " It is contended on behalf of the plaintiff-respondents that the present suit is not by the plaintiffs suing as partners in the firm and for this reason it is urged that it is not hit by sec. 69. It is further argued that the partnership between Chimanlal and Devilal on the one hand and Mohanlal defendant on the other stood dissolved on or before the 10th of January, 1951, and the agreement that was executed by Mohanlal in favour of Chimanlal and Devilal is independent of the partnership business even though it may have been written in consideration of the dealings of the previous partnership dealings between them. The learned counsel further emphasised this point with reference to the provision of sec. 69 (3) (a) which runs a follows: - "the provisions of sub-sec. (1) and (2) shall apply also to a claim of set-off or other proceedings to enforce a right arising from a contract, but shall not affect - (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power or realise the property of a dissolved firm, or. " It is argued that suits for dissolution and accounts of unregistered partnership firms and suits for realsing property of the dissolved firm are not barred by Sec. 69 and consequently a suit in respect of a contract executed after the dissolution of the firm in respect of the properties of the firm, cannot come within the mischief of Sec. 69. The learned counsel of the appellant urged that the suit is by the plaintiffs as partners of the firm and the suit is, therefore, barred by the provision of Sec. 69. A careful scrutiny of the language of sec. 69 makes it evident that a suit of the nature of the present one can not be regarded as barred by the provision of sec. 69. The partnership firm stood dissolved at or before the time the agreement, which is the basis of the suit, was executed by Mohanlal. It stands to reason that when the suit for dissolution of the account of an unregistered firm is not barred by sec. 69, a suit on the basis of an agreement executed after the dissolution of an unregistered partnership firm cannot come within the scope of the restrictions contained in sec. 69, it cannot be accepted that the suit is by the plaintiff in the capacity of the partners of an unregistered firm, because the firm stood dissolved before the agreement which is the basis of the suit was executed and the plaintiffs no longer retained the status of partners of that firm. They only claim their money from the defendant on the basis of an agreement executed by him in their favour in respect of their outstandings against the dissolved partnership firm. The decisions in Bajranglal Maniram Singhvi Agarwal vs. Anandilal Ramchandra Potdar (1) and S. A. Abdul Subhan Sahib vs. M. Abdul Ravoof Sahib (2) may be referred to in support of the view expressed above. In Bajranglal's case (1), it has been observed as follows: - "having come to the conclusion that the settlement of the account between partners of a dissolved partnership accompanied by a promise to pay the amount found due affords a fresh cause of action on which a suit can be based the contention of the appellant that the suit is barred by sec. 69 (1), Partnership Act, loses its significanee. In the view that we have taken, the suit is not one by or on behalf of any person suing as a partner in a firm but one by a person entitled to recover an amount on the basis of a settled account and as such is not governed by sec. 69 (1), Partnership Act. As the terms of the partnership do not at all enter into the consideration in such a suit, the fact that the partnership was an unregistered firm has no bearing on the suit as laid. The appellant relies upon I. L. R. 1940 Nagpur 130. The ratio decided of that case is that it is not essential that the firm should be actually in existence on the date when the suit is instituted for the application of sec. 69, sub-secs. (1) and (2), Partnership Act. In that case, the suit was by a partner in respect of money due to him on the basis of the partnership transaction and was held to be barred under sec. 69 (2) of the Act even though the partnership had been dissolved before the institution of the suit. The suit was not one based on the cause of action afforded by a settlement of account between the parties after the dissolution of an unregistered partnership. That case, therefore, has no application to the facts of the present case and is easily distinguishable. " In S. A. Abdul Subhan Sahib's case (2) it has been held that: - "sec. 69 has to be strictly construed. The bar in sec. 69 does not extend to suits for recovery of money due on a contract entered into between the partners of an unregistered firm in pursuance of an agreement entered into after dissolution and the taking of accounts". The suit in the present case is based on a contract entered into after the dissolution of the unregistered partnership and it is, therefore, not hit by the provision of sec. 69 of the Partnership Act. The court below has referred to the provision of sec. 72 (b) but it is doubtful if that provision of law can help the case of the plaintiffs as the document in this suit was executed after the commencement of the Act. However, it is not necessary to go into that question at all. The appeal fails and his dismissed with costs. . ;